The Shield Comes Down for Message Board Posters

July 29, 2011 | Insights

By Stacy Allen

Are online posters and bloggers protected from disclosing their sources by the various “shield laws” adopted by a growing number of states? Last month, the Supreme Court of New Jersey issued an opinion that helps define the outer limits of reporter shield laws for online media. In Too Much Media, LLC v. Hale, 20 A.3d 364 (N.J. 2011), the Court held that online message boards are not “news media” – as that term is defined in New Jersey’s broad shield law, N.J.S.A. 2A: 84A-21 to -21.8 – and that self-described journalists who merely post comments to such message boards are therefore not entitled to the privilege of protecting the confidentiality of their news sources.

The defendant, Shellee Hale, an alleged victim of “cyber flashers”, set out to investigate and expose what she believed was “criminal activity in the online adult entertainment industry.” As part of her activities, Hale began investigating reports of a security breach with plaintiff software company Too Much Media, LLC, which potentially exposed the personal information of customers who believed they had signed up anonymously for pornographic websites. She then posted comments to the online message board of Oprano – “the self-described ‘Wall Street Journal for the online adult entertainment industry’” – that criticized Too Much Media for the security breach and suggested it had threatened people who questioned its conduct, had profited from the breach, and had engaged in other illegal acts. In support of these comments, Hale claimed that “she conducted a detailed probe of the breach, which included talking with ‘sources on a confidential basis.’”

In response to these postings, Too Much Media sued Hale for defamation and false light. When Too Much Media sought to depose Hale, she “moved for a protective order and asserted that she was a reporter entitled to the protections of the [New Jersey] shield law.” In affirming lower court holdings that Hale did not qualify for protection under the shield law, the New Jersey Supreme Court focused on the question of “whether an online message board is similar to ‘newspapers, magazines, press associations, news agencies, wire services, radio, [or] television’” – the definition of “news media” found in the New Jersey shield law. Significantly, the Court reasoned that “[t]he fact that message boards appear on the Internet does not matter to the outcome. Instead, … we must examine what message boards are and how they operate.” The Court concluded that online message boards are not similar to traditional news media because they “are little more than forums for conversation” that, unlike traditional news media, allow for the publication of unedited, unscreened comments.

The New Jersey Supreme Court’s focus on the medium was somewhat at odds with the appellate court below, which reached the same conclusion by focusing on whether Hale exhibited any of the recognized qualities or characteristics traditionally associated with the news process (e.g., having confidentiality agreements with her sources; adhering to journalistic standards like editing, fact-checking, or the disclosure of conflicts of interest; having notes of conversations and interviews she conducted; or identifying herself as a reporter). That court found that she did not.

While not a Texas shield law decision, the court in Kaufman v. Islamic Society of Arlington, 291 S.W.3d 130, 142 (Tex. App. – Fort Worth 2009), when construing a statute granting a “member of the electronic or print media” a right of interlocutory appeal, looked to decisions in other states as instructive in assessing whether the Internet is “a type of nontraditional electronic media,” suggesting that the Too Much Media decision may influence future interpretation of the Texas shield law as well. The Kaufman court found that the author of an Internet article qualified as a “media defendant” both because of his notoriety and qualifications as a full-time investigative journalist writing for national publications for 12 years, and because the website that published the allegedly defamatory article would qualify as a “news medium” under the Texas shield law’s broad definition including media which “disseminate[] news or information to the public by any means, including … electronic; and … other means, known or unknown, that are accessible to the public”).

As the judicial interpretation of the shield laws of different states continues to evolve, those seeking the protections of such laws would be well advised to align their news gathering practices with those of traditional journalists, and avoid publication of their work on Internet message boards, chat rooms and other “new media” that, according to the Too Much Media court, lack “formal rules setting forth who may speak and in what manner, and with what limitations from the point of view of accuracy and reliability.”

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.